Will ‘Biden’s Law’ Turn the Tide on Ferguson?

WHY YOU SHOULD CARE

Federal investigations and law can be blunt instruments to deal with local police and race issues.

November 26, 2014

Federal prosecutors from the Department of Justice may thank — or maybe curse — the current resident of No. 1 Observatory Circle, on the grounds of the Naval Observatory in Washington, D.C. The guy who lives there is the author of a bill with a tattered history that might provide the feds with the only practical legal means of seeking a federal remedy for Ferguson, Missouri. By the way, this fellow’s name is Joe Biden, he’s the vice president and he used the bill as tough-on-crime capital for his own political career.

Back in 1994, it seemed like the right response. That’s when the bill, which then-Sen. Biden authored, passed into law, packed with all sorts of provisions. The law developed out of the case on the minds of everyone watching the crowds awaiting the decision in Ferguson on Monday evening: Rodney King. King’s brutal 1991 beating by Los Angeles police was captured on video, and the officers involved were charged with using excessive force. A mostly white jury failed to convict in 1992, provoking riots and a burst of public anger over the country’s crime policies. Within just two years, in 1994, Congress had passed Biden’s bill, the biggest crime law in U.S. history: the Violent Crime Control and Law Enforcement Act.

The law that hats are hanging on today in Ferguson has been partially repealed or nullified repeatedly, and called “a terrible mistake.”

The irony, though, is that the very law that so many hats are hanging on today in Ferguson has been partially repealed or nullified repeatedly, and even called “a terrible mistake” by Jeremy Travis, president of the John Jay College of Criminal Justice, in an interview with NPR. Why? Because it was driven by public anger after the King verdict and resulted in excessive incarceration, mainly of blacks. Now, 20 years later, that same public sentiment has resurfaced, and what the federal government does over the next two months will be a defining moment for the trajectory of the crime law — and for the legacy of its author and his boss.

Under the heat of public pressure, Congress did its thing. It put an extra 100,000 new cops on the streets and found money for more prisons, which the law helped fill up. Packed into that bill were the Federal Death Penalty Act, which created 60 new death penalty offenses; the Violence Against Women Act, later partially ruled unconstitutional in a controversial Supreme Court case; and the Federal Assault Weapons Ban, a provision that has since expired, to the delight of the National Rifle Association.

Among these heavy-hitting laws was another measure without a fancy name, now central to the Ferguson case: a police misconduct provision. The provision makes it illegal for any governmental authority to “engage in a pattern or practice of conduct by law enforcement officers … that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” The provision authorizes the attorney general to file lawsuits to reform police departments engaging in such practices. Read with the Civil Rights Act of 1964, the 1994 law prohibits police departments receiving federal funds from discriminating on the basis of race, color, sex or national origin.

The Brown family could have stronger recourse than the feds.

That’s what the feds are looking into now: Does the Ferguson Police Department engage in a pattern of racial discrimination? To find out, they need data, and lots of it: traffic stops, searches, arrests … any and all numbers that might show a disproportionate relationship explainable only by race. The department’s record is under a microscope, and digging through the data may take many more months. Ben Trachtenberg, associate professor of law at the University of Missouri, thinks they’ll go for it. “I mean, if the federal government spends a long time investigating for a pattern of discrimination, they are probably going to find something. They probably don’t want to walk home completely empty-handed,” he says. The Justice Department was unable to respond immediately to a request for comment.

A second federal approach, based on the 1968 Civil Rights Act, seems more direct, but it could be tougher-going: Federal investigators are zeroing in on the specifics of the Michael Brown shooting to see if a civil rights violation occurred. But Trachtenberg says to win a conviction, the prosecution has to show that Officer Darren Wilson, had the specific intent — that is, the purpose — of depriving Brown of his constitutional rights; that he shot him because of Brown’s race. That’s hard to convince 12 jurors of, says Trachtenberg says. “My guess is that there is not going to be a federal prosecution of Wilson absent some highly suspect stuff in the evidence, some bizarre smoking gun,” he says.

In this case, Brown’s family could have stronger recourse than the feds. They could bring a wrongful death suit in civil court, where the evidence threshold for winning is lower than in criminal court, or a Section 1983 suit for the wrongful deprivation of Brown’s rights.

Will it change what happens the next time a white cop shoots and kills a black man? “Why would you expect anything different?” says Trachtenberg. He doesn’t think it’s a Missouri thing, either. “These sorts of things happen all over the country,” where many places are shaped by a similar demographic and a long history of discrimination, including massive housing discrimination, he says. “I’m not going to say that this is true in Missouri and not true in Ohio or California.”

U.S. Attorney General Eric Holder, left, talks with Capt. Ron Johnson of the Missouri State Highway Patrol on Aug. 20 in Ferguson, Mo.